Электронный журнал Юридические исследования - №10 за 2019 год - Содержание - список статей - ISSN: 2409-7136 - Издательство NotaBene
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MAIN PAGE > Journal "Legal Studies" > Contents of Issue № 10/2019
Contents of Issue № 10/2019
Law and order
Trubin E.M., Golubev S.I. - Points at Issue With the Definition of Forgery (the Case Study of Article 326 of the Criminal Code of the Russian Federation) pp. 1-17

DOI:
10.25136/2409-7136.2019.10.31191

Abstract: The object of the research is the definition of forgery as it is used by the legislation, in particular, in Article 326 of the Criminal Code of the Russian Federation. The authors see the following problems: no legal definition, no single point of view in the doctrine of criminal law and incoordinations with other terms used in law. The wording 'forgery or counterfeiting state registration sign' used in Article 326 of the Criminal Code of the Russian Federation makes the situation even more complicated. Thus, the subject of this research is different doctrinal interpretations of the term 'forgery' and judicial practice. The methodological framework of the research covers such methods as analysis and synthesis, comparative law analysis, system-structured and formal law approaches, theoretical prognistic method and interpretation of legal provisions. The novelty of the research is caused by the fact that the author offer their own definition of the term 'forgery' and concludes that forgery and forgery documents/items are compatible and intersecting terms. The authors also conclude what criteria of truth and authenticity can be used to describe items/documents as forgery-counterfeiting, forgery but not counterfeiting and counterfeiting but not forgery. They also make recommendations on what amendments should be made in the applicable law. 
Экологическое и земельное право
Letuta T. - Civil Means and Methods of Environmental Harm Prevention (the Case Study of Regional Trial) pp. 18-30

DOI:
10.25136/2409-7136.2019.10.30800

Abstract: The object of the research is civil relations arising in the process of environmental harm prevention. The subject of the research is the standards of civil law and regional trials as well as researches. The author of the article pays special attention to answering the question whether Article 1065 of the Civil Code of the Russian Federation establishes environmental protection means as fully as possible, what means of civil protection can be used by complainants and whether the structure of Article 1065 of the Civil Code is efficient enough. Based on the research objectives, the author of the article has used such research methods as systems analysis allowing to cover a wide range of materials and to discover gaps and inconsistencies of references rules in The Law On Environmental Protectino and Civil Code as well as analysis and generalisation to work with trial materials and to make conclusions. The main conclusinos of the research are the following provisions. There is no direct mechanism for the implementation of provisions of The Law on Environmental Protection through Civil Code rules. Thus, the author offers better ways of implying civil means including protection of estates and property rights. Letuta offers her own variant of civil protection means that can be used to prevent environmental harm in certain cases. The author also gives her own variants of amendments and changes in the civil law that would ensure better implementation of the provisions of Articles 34, 56 and 80 of The Law on Environmental Protection. 
JUDICIAL POWER
Shapochanskii V.N., Eremeev S.G. - Psychological Grounds for Judicial Activity pp. 31-38

DOI:
10.25136/2409-7136.2019.10.31052

Abstract: The subject of the research is the personal traits of a judge and psychological peculiarities of judicial process. The authors focus on personal traits of all participants of a judicial process. The stage of trial is the climax of the entire pre-trial procedure. At this stage there is a direct confrontation between parties, available evidences are presented, studied and evaluated, in rare cases new evidences are discovered. This is the stage when a judge has the main role, besides legal functions he also arranges and manages regulation of interaction between all participants. In the course of their research the authors have used the methods of bibliographical analysis, analysis of documents and observation over participants of court procedcure. For efficient performance of his or her functions, a judge must have excellent knowledge of law and a whole number of personal qualities such as strong will, resistence to stress, communicative skills, etc. A judge experiences the influence of certain negative factors that accumulate and may seriously harm his or her personality. Another important role is performed by a prosecutor who also represents the state but is always at the part of accusation. Prosecutor's competence, argumentation and persuasion skills allow to complete efforts made by law enforcement agencies at the pre-trial stage. The accused is another participant worthy of attention. At the stage of trial his or her personality undergoes serious changes that define his or her further behaviour. The judicial decision-making process implies all kinds of available evidences as well as personal traits of all participants of a criminal process. 
Zaborovskaia I., Rekova V.S., Platonova V.I., Rezhapova I.M. - Anti-Corruption Sense of Justice as an Overriding Factor of Personality Development of a Penal Correction System Officer pp. 39-48

DOI:
10.25136/2409-7136.2019.10.27521

Abstract: The need in corruption prevention and the necessity to create the anti-corruption legal base are recognized by all states. This particular research is devoted to modern trends in corruption observed inside the penal system. The authors analyze views of researchers on this phenomenon as well as anti-corruption solutions and prove the importance of developing anti-corruption sense of justice and moral education of penal corection system officers. They also offer particular prevention measures aimed at developing anti-corruption sense of justice of officers. In the course of their research the authors analyze provisions of the federal law No, 273 On Corruption Prevention dated December 25, 2008 and offer measures aimed at anti-corruption behavior of officers. As a result of their research, the authors emphasize the need to develop anti-corruption policy and anti-corruption culture as well as the need to teach anti-corruption behavior and sense of justice to penal correction system officers and the need to discover and eliminate causes of corruption. They also conclude that there is a need to develop anti-corruption standards that are being developed by state authorities today for particular spheres of social relations. 
Karpukhin D.V., Ostroushko A.V. - Concerning the Legal Nature of Notifications About the Use of Budgetary Enforcement Measures pp. 49-58

DOI:
10.25136/2409-7136.2019.10.30928

Abstract: The object of the research is codification of budgetary relations arising in the process of implementation of budgetary enforcement measures. In 2013 the Budgetary Code of the Russian Federation offered a completely new two-level administrative procedure construction that implied fixation of the grounds for implementation of budgetary enforcement measures in notifications about the use of budgetary enforcement measures and decisions that such measures shall be applied. Analysis of the law enforcement practice of using the aforesaid budgetary enforcement measures has demonstrated that there is a problem defining the legal nature of notifications about the use of budgetary enforcement measures. The research is based on the combination of general and special research methods used in social and legal studies. The methodological basis of the research includes the dialectical method with typical requirements of objectivity, versatility, historicism and specificity of truth. General research methods used by the researcher include analysis, synthesis, comparison and measurement. The special research method is the comparative law analysis. As a result of the research, the author discovers that the problem of defining the legal nature of notifications about the use of budgetary enforcement measures is caused by the two-level law enforcement construction of budgetary enforcement measures that implies both notifications and decisions about application of budgetary enfrocement measures. The researcher also underlines the dual nature of notifications that, besides fixation of the grounds for implementation of budgetary enforcement measures and stating the amount of funds that have been used violating the limits of interbudgetary transfers, budget credict or have been used not for intended purpose, also contains instructions about making relevant decisions. 
Law and order
Koryakina Z.I. - Procedural Algorithm for Ensuring the Right a Minor Suspect or Accused to Defense in Pre-Trial Criminal Procedure pp. 59-72

DOI:
10.25136/2409-7136.2019.10.30926

Abstract: In terms of scientific interpretation and law-enforcement practice, Koryakina analyzes criminal procedure legislation that regulates ensuring the right to defense of a suspect or accused who haven't reached their legal age at the time of trial. The main problem here is that the procedure of pre-trial ensurance of the right to defense of a minor suspect or accused do not cover the full range of legal rights and interests as it is set forth by the Criminal Procedure Code of the Russian Federation. Thus, the legal status of a minor is equalized to the status of an individual of legal age. The aim of the research is to discover new theoretical and practical provisions about the process of ensuring the right to defense of a minor suspect or accused at the pre-trial stage of criminal procedure. The research objectives include analysis of doctrinal and regulatory ensuring the right of minors to defense as well as analysis of specific features of such process. In her research Koryakina has also used sociological, formal legal, comparative legal analysis, systems approach and modelling, historical legal and logical legal methods. In her article the author offers new provisions aimed at developing the mechanism of protection of minors' legal rights and interests taking into account not only their age but also their lack of life experience. Thus, the scientific novelty of the research is caused by the fact that the author suggests to renew the procedure of ensuring the right of minors to defense. 
Теория и философия права
Chuklova E.V. - The Relations Between the Institution of Procedural Responsibility, Legal Relationships and Legal Practice pp. 73-85

DOI:
10.25136/2409-7136.2019.10.30890

Abstract: The subject of this research is the institution of procedural responsibility and its relations with legal relationships and legal practice. In her research Chuklova defines genetic, coordination, subordination and functional relations. According to the author, implementation of procedural responsibility provisions creates both material and procedural legal relations. The author demonstrates that the institution of procedural responsibility either relates to legal relationships at the functional genetic level disregarding the definition of a particular legal relationship or acts as a result of legal regulation or means of regulation. There should be legal grounds for creating such an institution, too. The institution of procedural responsibility creates conditions for discovering the truth in criminal, civil or administrative cases, thus demonstrating subordination relations. The research is based on general and special research methods such as comparative law, formal law analysis, functional and systems approaches, etc. As a result of the research, the author concludes that judicial practice is a coordination link between procedural form and material law, however, many court decisions demonstrate a negative tendency in implementation of the procedural responsibility provisions when there is a total substitution of one term with the other. For example, contempt of court includes such actions as numerous continuous disqualifications, non-submission of documents, failure to appear in court, non-compliance with court orders, negative remarks about a judge's professional or personal qualities. The article is funded by The Russian Foundation for Basic Research, project No. 19-011-00103 А 'Legal Responsibility in Russia's Legal System: the Concept of Interaction, Interconnection and Elimination of Contradictions with Other Elements of Legal System'. 
Lipinsky D.A., Musatkina A.A., Chuklova E.V. - Concerning Genetic, Coordination and Subordinate Relations of Procedural Responsibility pp. 86-98

DOI:
10.25136/2409-7136.2019.10.31088

Abstract: The object of the research is procedural responsibility relations and the subject of the research is sub-institutions and different kinds of functional relations inside and outside them. The researchers analyse sub-institutios of criminal procedure, administrative procedure and civil procedure responsibility and describes different kinds of their relations. They focus on the development of the institutions of procedural responsibility and their isolation from material branches of law. The authors describe different kinds of interaction between structural elements of procedural responsibility and disclose genetic, coordination and subordinate relations. The methodology of the research is based on historical law, formal law and dialectical analysis methods. The authors have also applied such methods as deduction and induction, analysis and synthesis. The novelty of the research is caused by the fact that the authors explain the grounds for creation of the institution of procedural responsibility and describe particular manifestations of subordinate and coordination relations. They prove the existence of close and distant genetic relations as well as direct and derivative relations that may be of both internal and external nature. The authors discover that genetic relations that demonstrate the proximity and origin of the institution of procedural responsibility are conditioned by specialization of law branches as well as sub-institutions of procedural responsibility. They prove that coordination links ensure horizontal coordination and may affect, firstly, the order of bringing to different kinds of legal responsibility and secondly, application of other kinds of legal responsibility besides procedural responsibility; thirdly, the use of terms, definitions, measures typical for different kinds of legal responsibility, and fourthly, regulation of homogenous social relations.    
Kuzmin I.A. - Concerning Coordination, Subordination and Genetic Relations of Legal Responsibility with the System of Law and Legislation System pp. 99-111

DOI:
10.25136/2409-7136.2019.10.31256

Abstract: The object of the research is a complex interaction between the regulatory construction of legal responsibility, the system of law and legislation system expressed in coordination, subordination and genetic relations. The subject of the research includes specific features of the relationship between legal responsibility and other legal phenomena at the substantial, structural and systemic levels. The main emphasis is made on the analysis of legal norms and regulations of legal responsibility, its branch and sub-branch systems. The author presents a variety of interpretations of legal responsibility as a regulatory phenomenon. Aiming at the needs of legal science and practice and being based on doctrinal, regulatory and law enforcement sources, the author suggests to extend the scope of application of the systems approach to legal research based on the example of analysis of legal responsibility as an element of the system of law and legislation system. To ensure the validity of research data, besides general research methods the author has also used special research methods (sociological and historical) and private research methods (formal legal, structural legal and comparative legal). The author describes the contents of functional (coordination and subordination) and genetic relations between inter-branch institution of legal responsibility from the point of view of different kinds and classification of legal responsibility. Based on overall theoretical characteristics of legal collisions and different kinds of regulatory relationships, the author shares his own position on inter-branch and intra-branch collisions arising between legal responsibility provisions and elements of the system of law and legislation system. The author also offers his own method of discovering legal contradictions and responding to them as the grounds for further development of a universal mechanism of solving collisions that arise in the process of law making and law enforcement activities. 
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